Licence Appeal Tribunal File Number: 22-012076/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Tuvia Ziv
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Nadia Mauro
SUBMISSIONS BY:
For the Applicant:
Maziar Mortezaei, Counsel
For the Respondent:
Juny Kim, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Tuvia Ziv, the applicant, was involved in an automobile accident on January 9, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issue in dispute is:
i. Is applicant barred from proceeding with his claim for benefits as he failed to provide the insurer with information required to assist the insurer in determining his entitlement to benefits within 10 business days after receiving the request s. 33(1)?
3In its submissions, the respondent withdrew the preliminary issue. As a result, only the substantive issues are in dispute.
SUBSTANTIVE ISSUES
4The substantive issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit (“MIG”)?
ii. Is the applicant entitled to $2,186.06 for chiropractic services, proposed by Active Care Health Services in a treatment plan (OCF-18) dated November 22, 2022?
iii. Is the applicant entitled to $7,359.00 proposed by Dr. Aviv Ouanounou in a treatment plan dated April 26, 2022?
iv. Is the applicant entitled to $879.00 for prescription eyeglasses, submitted on a claim form (OCF-6) dated April 18, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
vii. Is the respondent liable to pay $500.00 in costs to the applicant?
5The respondent indicated in its submissions that it has partially approved the dental services, proposed by Dr. Aviv Ouanounou, dated April 26, 2022, for the incurred amount of $4,130.60, leaving the disputed remainder of $3,228.40.
6I have also added the applicant’s request for costs to the issues in dispute. Rule 19.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”), provide that a party can make a request for costs “at any time before the decision or order is released.”
RESULT
7The applicant has demonstrated that he suffers from accident-related injuries that warrant removal from the MIG.
8The applicant is entitled to the OCF-18 for chiropractic services.
9The applicant is entitled to the incurred expenses under the OCF-18 for dental services in the amount of $4,130.60.
10The applicant is entitled to reimbursement for the prescription eyeglasses.
11The respondent is liable to pay an award.
12The applicant is entitled to interest in accordance with s. 51 of the Schedule.
13The respondent is not liable to pay costs.
PROCEDURAL ISSUES
Length of submissions
14The respondent argues that the applicant’s submissions were to be limited to 12 pages, pursuant to the CCRO, however, the applicant’s submissions are 14 pages in length. The respondent submits that the applicant should have brought a motion seeking leave to increase the page limits, but did not do so, and as such, the two additional pages should be struck.
15The applicant submits that his written submissions do not exceed the page limits ordered by the Tribunal. The applicant argues that the CCRO states the page limits for submissions “are exclusive of evidence and case law.” The applicant states that once his footnotes and case law are removed, the submissions do not exceed the 12-page limit. Alternatively, the applicant argues that the two excess pages are merely concluding remarks addressing the request for a special award.
16While it is true that the CCRO indicates that the submission page limits are exclusive of evidence and case law, the phrase “evidence and case law” is not to be construed as footnotes. The phrase “exclusive of evidence and case law” refers to tabs, exhibits, book of authorities, or the like, that may be submitted as part of the parties’ respective hearing briefs. It does not encompass references to evidence and case law within the party’s submissions.
17I find that, although the applicant did exceed the page limit, there is no prejudice to the respondent, in considering the two pages, as the respondent addressed the issue in its submissions, and as such, had sufficient time to state its position. Moreover, I agree with the applicant in that the bulk of pages 13 and 14 are concluding statements with respect to the request for a special award and do not necessarily add any substance to the applicant’s submissions with respect to the issues in dispute. As such, pages 13 and 14 of the applicant’s submissions will be considered.
ANALYSIS
Minor Injury Guideline
18I find that the applicant has met his onus and has demonstrated that his accident-related injuries warrant removal from the MIG.
19Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
20An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
21The applicant argues that as a result of the accident, he has sustained pre-existing injuries, chronic pain with functional limitations, and dental injuries that prevent his complete recovery within the confines of the MIG. The respondent does not make submissions with respect to MIG.
22Based on the evidence provided, I am satisfied that the applicant’s dental injuries warrant removal from the MIG.
23The clinical notes and records (“CNRs”) of the applicant’s family practitioner, Dr. Indren Mutukistna, show that on February 5, 2022, the applicant reported that he “lost a tooth from MVA.” The applicant also reported in his application for benefits (OCF-1) that he hit his mouth on impact, causing one of his front teeth to become loose and fall out the following day. The applicant subsequently visited his dentist, Dr. Aviv Ouanounou, who performed “extractions of tooth 2.2. and the placement of a dental implant was done [sic] on April 2, 2021 and August 10, 2021.” Dr. Ouanounou confirmed in a letter dated November 22, 2022, that the applicant reported “his front teeth were injured at the time of the accident. Tooth 2.2 crown fractures and teeth 1.1 and 2.1 chipped. I have examined [the applicant] and confirmed the above.”
24Accident-related injuries that require surgery are not captured by the definition of a minor injury as prescribed by the Schedule. Given that the applicant required dental surgery as a result of his accident-related dental injuries, I find that the applicant has therefore sustained a non-minor injury and should be removed from the confines of the MIG.
25As such, I find that the applicant has proven, on a balance of probabilities, that his accident-related injuries warrant removal from the MIG.
26Having removed the applicant from the MIG on the basis of accident-related injuries, I therefore do not need to decide the applicant’s other claims to be removed (i.e., pre-existing conditions or chronic pain).
The applicant is entitled to the OCF-18 in the amount of $2,186.06 for chiropractic services
27I find that the applicant has proven, on a balance of probabilities, that the proposed treatment plan for chiropractic services is reasonable and necessary.
28The OCF-18, submitted by chiropractor, Dr. Simon Rom, on November 22, 2022, proposes treatment such as a multidisciplinary rehabilitation program and massage therapy. The OCF-18 identifies treatment goals of pain reduction and increasing range of motion to help return the applicant to pre-accident functional levels.
29The applicant submits that as a result of the accident, he continues to suffer from multiple ongoing injuries. The applicant argues that in addition to his family practitioner, Dr. Indren Mutukistna, recommending continued physiotherapy and massage, other specialists who examined him have concluded he suffers from reduced “ROM”, aggravation of pre-existing injury, and ongoing pain across multiple body parts.
30I find that the evidence shows that the treatment plan for chiropractic services is reasonable and necessary.
31Specifically, the CNRs of Dr. Mutukistna indicate that since January 10, 2022, the applicant has reported ongoing accident-related complaints such as a lost tooth, neck pain, knee pain, back pain, and tiredness/fatigue. Dr. Mutukistna has prescribed pharmaceuticals and physical therapy. On September 12, 2022, around two months prior to the submissions of the proposed treatment plan, Dr. Mutukistna recommended daily stretching, a roller ball, and “physio”. I have not been pointed to evidence to the contrary. I find that the applicant has met his onus by providing contemporaneous evidence that would substantiate the need for the proposed treatment plan.
32As such, I find that the applicant has proven, on a balance of probabilities, that the proposed treatment plan is reasonable and necessary.
The applicant is entitled to the OCF-18 in the amount of $4,130.60 for incurred dental expenses
33I find that applicant has proven, on a balance of probabilities, that the incurred treatment under the proposed treatment plan for dental expenses is reasonable and necessary.
34The OCF-18, submitted by dentist Dr. Aviv Ouanounou, on April 26, 2022, provided an estimate for a number of dental services, such as surgical removal of teeth, osseous allograft, subperiosteal implant, crown porcelain, commercial laboratory procedure, and porcelain fused to metal crown. The OCF-18 set the treatment goal as pain reduction.
35The applicant submits that, as a result of the accident, he has suffered from dental injuries, jaw pain, and headaches. The applicant argues that he complained not only to his family practitioner, Dr. Indren Mutukistna, of a lost tooth as a result of the accident, but also made dental complaints to dentist, Dr. Aviv Ouanounou. As a result, Dr. Ouanounou recommended “the extraction of tooth 2.2, bone grating of the area and dental implants and crowns in teeth 1.1 and 2.1.”
36The respondent submits that it has approved the total incurred amount of $4,130.60. Moreover, the respondent submits that the applicant has not provided evidence that the balance of the treatment plan, being $3,228.40, is reasonable and necessary. The respondent argues that once $4,130.60 worth of dental services were performed on April 19, 2023, the applicant did not suffer any further dental issues and the applicant’s concerns were totally remedied.
37The applicant indicated in his submissions that he has incurred the following treatment:
i. May 18, 2022: dentures and acrylic base, in the amount of $585.00;
ii. August 10, 2022: implants, root canal, and labour in the amount of $2,108.00;
iii. December 7, 2022: crown implants, installation, and labour in the amount of $1,403.00; and
iv. April 19, 2023: oral examinations, radiographs, diagnosis in the amount of $173.00.
38The CNRs of Dr. Ouanounou indicate that the applicant incurred a total of $4,269.00 of the estimated $7,359.00, and $138.40 has been paid by a priority insurer. The applicant has not pointed me to further evidence that would indicate whether he as received any further treatment after April 2023, or whether he has incurred any of the remaining estimate under the OCF-18. The applicant also did not make any submissions with respect to the remaining balance, of $3,228.40, in his reply submissions.
39Based on the CNRs of Dr. Mutukistna and Dr. Ouanounou, I am satisfied that the applicant sustained dental injuries as a result of the accident. However, I have not been provided with evidence that would substantiate that the balance of the OCF-18 as reasonable and necessary. As such, based on the submissions and evidence before me, I find the incurred amount of $4,130.60 to be reasonable and necessary, only. In any event, I find as stated above, that the respondent agreed to pay the amount of $4,130.60 for incurred expenses.
40Given the foregoing, I find that the applicant is entitled to the incurred dental treatment, in the amount of $4,130.60.
The OCF-6 for prescription eyeglasses is reasonable and necessary
41I find that the applicant is entitled to the OCF-6 for the prescription eyeglasses.
42The applicant submits that following the accident, his prescription eyeglasses “flew off” and were damaged. The OCF-6 was submitted to replace the damaged pair. The applicant further argues that he suffered from vision changes and dry eyes following the accident.
43The respondent submits that the applicant has not provided any evidence to support that he has incurred the replacement of his glasses as a result of the accident, or that his vision deteriorated post-accident. The respondent further argues that the OCF-6 was submitted four months after the subject accident, and the applicant would have needed his glasses sooner than that had they been damaged in the accident.
44Pursuant to s. 24(2), an insurer shall pay for all reasonable expenses incurred by an applicant for prescription eyewear lost or damaged as a result of an accident. I find that the applicant is entitled to the OCF-6 because the evidence indicates that the applicant not only reported that his “glasses flew off” and his lenses broke in his application for accident benefits (OCF-1), dated February 28, 2022, but also to the respondent adjuster on January 13, 2022. Moreover, the applicant underwent an eye exam with optometrist, Dr. Allan Hum, on February 8, 2022, and submitted the prescription estimate, dated April 18, 2022, via OCF-6, on April 25, 2022.
45I am not persuaded by the respondent’s argument with respect to the length of time that had elapsed in submitting the OCF-6. In this case, I find that it is more probable than not, that the applicant’s eyeglasses were damaged as a result of this collision, and I do not agree with the suggestion that the length of time it took for the applicant to replace his prescription eyeglasses somehow means that he is not entitled to the OCF-6.
46A such, I find that the applicant has proven, on a balance of probabilities, that the expenses for the prescription eyeglasses are reasonable and necessary.
Interest
47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that that applicant is entitled to interest for the chiropractic services and incurred expenses under the OCF-18 for dental services. The applicant is also entitled to interest on the outstanding balance for the prescription eyeglasses.
Award
48The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
49The applicant must prove, on a balance of probabilities, that the respondent unreasonably withheld or delayed payments or that there was unreasonable conduct by the respondent. More specifically, the applicant must prove that benefits were unreasonably withheld or that there was conduct that was excessive, imprudent, stubborn, inflexible, unyielding or immoderate in addressing the issues in dispute.
50The applicant submits that the respondent unreasonably withheld or delayed payments for medical benefits for treatment and incurred expenses. The applicant argues that the respondent only withdrew the preliminary issue and partially approved the incurred dental treatments after receiving his submissions. The applicant further argues that the respondent had ample opportunity to review, respond, and approve the multitude of medical evidence and supporting documentations.
51The respondent argues that it denied the OCF-18s and OCF-6 based on the documentation that it had in file, and the applicant did not provide the respondent with particulars for the special award until his submissions, in contravention of the CCRO.
52I agree with the applicant, that the respondent unreasonably withheld or delayed payments for medical benefits for the treatment and incurred expenses. The respondent submitted that the applicant provided a copy of the incurred expenses for the dental treatment, on June 15, 2023. The respondent thereafter approved the total incurred amount of $4,130.60, by way of explanation of benefits (“EOB”), dated March 1, 2024. The applicant submitted, in his reply submissions, that neither he nor the treatment provider of the dental services, have received the EOB. It is unclear why the respondent paid the dental services on March 1, 2024, approximately eight months after the expenses were provided, but based on the evidence before me, it is clear that the applicant had provided medical documentation with respect to the dental services well in advance of this hearing. As such, and without any explanation to the contrary, I find the respondent’s delay in payment wholly unreasonable.
53While I acknowledge that the applicant did not provide particulars of the special award claim in accordance with the CCRO, I do not agree with the respondent that it is contrary to procedural fairness, or that the claim should therefore be dismissed. Not only did the respondent have sufficient time to respond to the applicant’s claim for a special award in its own submissions, but the basis for the special award is on the partial approval of dental services, which the respondent approved after the applicant’s initial submissions. In my view, even if the applicant were to provide particulars of a special award claim in accordance with the CCRO, it is unlikely that the basis for the finding of the special award would be included, given that the applicant was only made award of the partial approval for dental services after the submissions of the respondent.
54Case law has established the criteria for the consideration of granting an award. The award should be proportionate to: a) the level of blame to be placed on the insurer’s conduct; b) the vulnerability of the insured; c) the potential or actual harm to the insured; d) the necessity of deterring future such conduct from the insurer; d) the advantage gained through the insurer’s misconduct; and e) a consideration of any other action that has been or will be taken against the insurer due to its conduct. Through subsequent case law, an additional consideration has been the overall length of the delay. These are the factors that the Tribunal has considered assistive when determining a s. 10 award.
55In these circumstances, the highest allowable award would be excessive, however, I find an award of 15% to be appropriate, plus interest, of the total benefits payable.
56Given the above, I find that the respondent is liable to pay an award.
COSTS
57Rule 19.1 provides that a party may request costs of the proceeding if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.
58The applicant argued, in his reply submissions, that despite the applicant requesting the respondent to withdraw this preliminary issue, the applicant did not receive a response. The applicant submits that the respondent knew or ought to have known its preliminary issue is without merit, and the applicant incurred legal costs responding to same.
59I find that the applicant has not met the test set out in Rule 19. I fail to see the respondent’s decision to withdraw the preliminary issue as serious misconduct that is unreasonable, frivolous, vexatious or in bad faith. The respondent is at liberty to withdraw a preliminary issue it has brought forward at any time throughout the proceedings. As such, I am not persuaded that the high threshold for costs has been met.
ORDER
60I find that:
i. The applicant has demonstrated he sustained a non-minor injury as a result of the accident warranting removal from the MIG.
ii. The applicant is entitled to the OCF-18 for chiropractic services.
iii. The applicant is entitled to the incurred expenses under the OCF-18 for dental services in the amount of $4,130.60.
iv. The applicant is entitled to reimbursement for the prescription eyeglasses.
v. The respondent is liable to pay an award of 15% of the total amount of benefits payable in accordance with s. 10 of the Regulation 664.
vi. The applicant is entitled to interest in accordance with s. 51 of the Schedule.
vii. The respondent is not liable to pay costs.
Released: December 12, 2024
Nadia Mauro
Adjudicator